Ontario judge orders part of defence statements be removed in case against auto insurance agents

An Ontario court has ordered that two paragraphs be expunged from a statement of defence filed by Allstate agents being sued by a policyholder who alleges they failed to advise him of the option of purchasing more than $1 million of auto coverage under a family protection endorsement.

Bryan Trottier, who was seriously injured in an accident in 2009, had purchased $1 million on the Ontario Policy Change Form (OCPF)44R family protection endorsement.

That endorsement is designed to protect policyholders or their family members to the same limits as their third-party liability policies if they are involved in an accident, where they are not at fault, with someone who carries less insurance, no insurance or is an unidentified driver.

Court records indicate Trottier, 32, suffered a traumatic brain injury, will require 24-hour attendant care for the rest of his life. He is suing the other motorists, who are underinsured.

However, he will not be indemnified by his Allstate family protection policy for his unpaid damages because the limits of Trottier’s family protection policy do not exceed the third-party liability limits of the owner of the other vehicle.

Trottier is also suing two Sudbury-area Allstate agents, claiming they “failed to warn (Trottier) that he may not have sufficient underinsured motorist coverage in the event that he sustained a serious or catastrophic loss arising from a motor vehicle collision.”

Trottier’s statement of claim also alleges that the Allstate agents “failed to advise” him “of available automobile coverage, and in particular, the availability of more than $1,000,000.00 in insurance coverage.”

For its part, the Allstate agents claim they advised Trottier “of the purpose of third party liability and family protection coverage and of the option to purchase $2,000,000 policy limits for those coverages.”

None of the allegations have been proven in court.

In a decision May 24, Madame Justice Louise Gauthier of the Ontario Superior Court of Justice ordered the defendants to strike two paragraphs from their statement of defence. Her decision was on a motion to strike those paragraphs, not on the merit of Trottier’s claims.

The defendants stated that as of the date the plaintiffs purchased the policy, more than 90% of auto insurance clients in Ontario elect to buy $1 million in third party liability/family endorsement. The statement of defence added that when Trottier’s accident occurred in 2009, about 90% of Ontario auto customers were still buying $1 million in coverage.

It was those statements that were ordered expunged.

“Knowing what most Ontario motorists did in the past will not help the trier of fact determine what this particular motorist did,” Judge Gauthier wrote in her decision. “Additionally, the statistic does not refer to whether or not those motorists who opted for lower insurance coverages were nevertheless advised of their options by their insurance brokers, which is at the heart of the matter in question.”

Court records indicate Trottier had been buying insurance from Allstate since 2003.

“The defendants plead that at the time of each policy renewal the plaintiff was advised to inquire about the coverages available to discuss with his Allstate agent his specific needs but did not respond to same,” Judge Gauthier wrote.

Trottier alleged in his statement of claim that the Allstate agents “failed to recommend … given his age and income earning capacity, the appropriate level of insurance coverage available under the policy.”

For their part, the Allstate agents claim Trottier “had no desire to increase his insurance costs by any amount and in fact was looking for ways to reduce same …”